FMOFG-EXCEPTION Flashcards
What is the purpose of exceptions?
diagram captures whole thing of free movement of goods
on left side you have european unions interst and eus interest is to promote full free movment - wants single , internal market in goods,serrvices, capital and people = whole point of eu - and on that slide way in which eu secures that interest is in what martin calls scope of application of treaty so what is or not caught br treat- what is or not freemovement of good what is or is not good orrestrition
and if ecjintermpts in narrow way risk that falls outside that scope- eu interest not being protected- has ecj given those 2 terms narrow /braod meaning?-
broad ! andn given broad meaning= eu interest
state interest- intere to protect citizens nationresources, to protect hidtor, consumers , this is where excpetions come so eu accepts under fre coris - ech not a good thing - ecj done here- given notion of exceprion a fvery narrow meaning so its very diffivult to satify something falls within one of the exceptions - there has tro be some unerlying judtificrion that will be tested by ecj if challneegd -
meant eu interesty protected far more than state interst - wide application gives eu additional weight- narrow constrction gives exceprions more limited role - this ion some weays where som eofprobems come with brexit - politcal motivation behind brexit - on other side control and automoy and my view some more sophisticated arg - doesnt respect sate intreets- legit stae interes
Exceptions to free movement of goods: Treaty position
Article 36 TFEU:
‘The provisions of Articles34 and 35 shall not preclude…justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States
THIS MAIN SECTION FOR FMOG- SO THEN WE COME TO EXCEPTIONS ADN THIS IS WHAT TREATY SAYS- THE PROVISION ARTICLE 34 AND 35 SHALL NOT PRECLUDE
CAN RESTRICT FREE MOVEMENT ON GROUNDS OF PUBLIC MORALITY, POLICY OR SECURITY, PROTECTION HEALTH LIFE HUMAND ANIMAL AND PALNTS, PROTECTUON OF INDUTIAL AND COMMERICAL PRO-O THOSE ARE THE TREATY EXCEPTIONS, IF SOEMTHING EFFECTS PUBLIC POLCY - PBULIC POLIUCY- U CAN RESTRICT FREEDOM OF GOODS IN THOSE CIRCUMSTANCES
BUT USE OF EXCEPTION SHALL NOT- this where ecj get inbvoled, you cant just claim 1 of these exceptions and stop goods coming in you ned to be able to demonstraet that is actually true and ur not using as means of unstriign free movemnt of goods -1 hand u have freedom other hadn u have ms . so wehre we gete back to
what can they justify?
What can they justify?
Distinctly applicable measures/indistinctly applicable measures/non-discriminatory measures.
DISTINCTION - THE TREATY EXCEPTIONS CAN BE USED FOR EVERYTHING
DISTINCIAPL APPLIC/INDISIN APPL/NON DISCRIM - U CAN USE TREATY EXCEPTIONS FOR ANY OF THOSE THINGS
TREATY EXCDEPTIONS ARE THERE ALWAYS
SO ART 36 CAN BE USED FOR ANY FORM OF RESTRICTION
SO NATURE OF THESE RESTRICTIONS
Nature of Treaty exceptions - exhaustice etc?
Exhaustive
Commission v Ireland (souvenirs) - consumer protection cannot = public policy
in this case- ireland bough in national measure which - decided to have trading rule which meant on bottom of all these things you had a stamp - and either said made in ireland or foregin - now u can see thats restricion of frm of goods and in any case its distinctly applicable its something that makes a difference - home goods and other goods
classed as restriction so ireland said we gonna rely on treaty - we want consumers to now orgin of good- irish good bette than foreign goods
echr said no- consumer protection not included definition of PUBLIC POLICY - NARROW SCOPE APPLIED TO THINGS THAT AFFECT VERY EXITENCE OF TEH STATE
PUBLIC POL IS NOT BROAD TERM - ECHR INTERPRETED IT NARROWLY
e.g of public policy? - narrowly construed also?
Narrowly construed
Church of Scientology ‘interpreted strictly’ so that the scope of an exception ‘cannot be determined unilaterally by each Member State without any control by the [EU] institutions.’
- e.g of public pol was allowed was the church of scientology wanted to transfer money into uk- uk said no and tehy said this was restiction on frm ov capital and uk argued as matter of public polcy church was against being fuded
cj said that is a matter of public polcy- f tehre is threat to fundamental INTEREST OF STATE THAT IS PUBLIC POLICYU
consumer protection no wehre near that protection - than threat to state - nature of treaty exptions = narrow and exhaustive
which means list in art 36 = THE LIST
THE COURT CANNOT ADD TO THAT LIST OF EXCEPTIONS- IF YOURE RELYING ON TREATY IT HAS TO BE PUBLIC ETC
so although exceptions protect ms interests- they are to be understood in eu context - point of this is that the exceptions are narrowly construed - THEY ARE EXHAUSTRIVE AND THEY ARE SUBJECT TO CONTROL BY ECJ - doesnt say we just accept what ms says we control this process and we are repsoniable for interp of the exception
what about economic int?
Economic interests are not covered!
Commission v Italy (pork industry)
Campus Oil
- people brung dead pigs into italy and grase had lots of cheap pork meat and wanted to bring into italy and italy said that national industry will collapse and will cost oure conomy a lot of money - coj said u cannot rely on economic int as excpetion to free movement of goods
MS CANNOT USE AN EXCEPTION TO PROTECT AN ECONOMIC INTEREST
YOU CANNOT USE ECONOMIC INTEREST TO JUSTIFY FREE MOVEMENT OF GOODS
campus oil- if u do u could have bit of luck- shown in this case - you need to refine oil - and there is massive business in refining of oil - and uk / ireland has some refining capability so we have some national refieries turned into valuable stuff - uk insituted measure saying a certian prop of oil came into country had to be refiened in uk refineries - in other words - the sate wanted some control over refinind of oil - uk said EXCEPTIO - PUBLIC SECU- ARGUED uks economy so dependant on oitl that if we dont maintain - teh ver existence of country at stake
free flow of oil so important to state - if no more refining so as matter of public sec = jsutification - we know this is a restriction cos saying cetian proprition in certian way BUT THEY SAID PUBLIC SEC- ACTUALLY THIS IS ALSO ECONOMIC ARGE.G IF COUNTRY STOPS WORKING COUNTRY COLLAPSES AND ECONOMY FAILS- CT OVERLOOK THAT AN SAYS LOPKING AND DEEPR PS - WAS ALLOWED TEH RULE - satsified one of teh exceptions
Exceptions: mandatory requirements/overriding interests?
one hand you have treaty exceptions- art 36 yes theyre exhaustive narrowly cosntrued but not evnough- so made A SEPERATE LIST- CALLED MANDATORY REQ /OVERRDIGNG INT - list of exceptionsn were said not wide enough- prblem thhey said WE WONT ADD WELL COME UP WITH ANOTHER LIST- A JUDICIALLY CREATED SET OF EXCEPTIONS AND MARTIN ALREADY TALKED U THROUGH CASSIS CASE
Cassis (non-exhaustive) -DEJOHN NOT BEING STRONG ENOUGH -accept was restiction - germany nto saying anything- ct had prob cos said list not echsutie so make new list so there is this new non exhstive list of MANDATORY REQ AND OVERRIDING INTEREST - CAN HAVE EXCEPTION IF 1 OF THOSE E.GS
- Consumer protection
- Environmental protection
- Road safety
- Fiscal cohesion - applies to certain tax matters
court said cant use economic interest but thats what fiscal cohesion is
what can they justify?
What can they justify?
Only indistinctly applicable measures and non-discriminatory measures! (i.e. they can not be used to justify distinctly applicable measures
IMPROTANT TO NOTE - YOU CANT JUSTIFY THE SAME THINGS WITH THIS NON EXHCUSTIVE LIST AS U CAN WITH ART 36- TREATY EXCEP U CAN USE TO JUSTIFY EVERYHTING - VOERDING INTERST U CANT - OVERRIDNG CAN ONLY APPLY TO INDISTIN APPL MEASURE AND NON DISCRIM MEASURE- U CANNOT USE THIS GROUP OF ECEPTIONS - CT MADE UP ONES IF IT IS A DISITNCILY APPLICABLE MEASURE
DIRECT DISCRIM - U CAN PONLY USE TREATY
OTHER 2 U CAN USE BOTH
OTHER STUFF
- restrictions= scope limti
- how and when u can use exception through doctrine of proprtionality
Limiting use of exceptions: proportionality ?
Proportionality - this is a limit on use of exception by ms its called principle of proptionality
lecture e.g more disporp response all lecture have doors i could just lock u all in - so lets look at extremeness
Zardi - ‘the principle of proportionality…has been consistently held…to be one of the general principles of [Union] law.’
Test:
Hercules: ‘[it] requires that measures…should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it.’- 3 bits to test - there must be legit aim - thats what were trying to achiev
2. must be appropiate for achiebing that there must be link btw legit aim and measure u take= low threshold
3. whether necc are there other ways u could achieve same think that are less restrictive
i) Objective ii) appropriate iii) necessary
Proportionality Test in depth?
Objective (low barrier) identifying e.g
Sunday trading cases - so if youre shops certain size certain square footage= resrticve opening hours= broad rules- what is teh objective of sunday trading law - what is the legit aim behind this = RESPECTUFUL CULTRUAL TRADITION/HERITAGE -sunday signfic chrsitian - any other aims- worker protection -improtant to protect day where we dont make or if they do= more limteid hours - so noth aim are legitimaite - differnt ways u could achieve that aim - so fi u want to protect cultural sig of sunday -recognise golden jesus - is it poss that clsogn shops on sudnay will ahve that effect ?
II) Appropriate (low barrier) - diff ways you could achieve that aim- low barrier
UHT
III) Necessary
Commission v Germany (beer purity); Cassis de Dijon
‘Less restrictive means’
mesns is there different way u could achieve same aim thAT LESS RESTRICTIIVE CAN USE MAND REQ OF protectio of cultral heritaege- now lets run with wotk er protect u want to prtoect worrekrs from working ll day evryday -is clsoing shosp on sunday appropaiet way of doing that- is there any link btw worker protectiona nd closing shops on specific day- this will now fail necesity test- is it neccesity to close shops on sunday-poerson not working too mamny hourse - does it have to be sunday?
SAYING : U IDEITNFY CORRECT OBJECTIVE- IS THERE LINK BTW OBJECTIVE AND IS THERE LESS RESTICIVEE WAYS OF DOIN GIT - GREATER INFO TO CONSUMER BETTER THAN MBAN IN CASSI DIJOHN - so what is corts proper role- national courts being old waht to do
Examples of specific exceptions in practice- Public policy?
Public policy
Generally
Church of Scientology (capital) – ‘genuine and sufficiently serious threat to a fundamental interest of society.’ = IF DOESNT SATIFY THIS IT IS NOT PUBLIC POLICY
Van Duyn (persons) Thompson (goods)
Freedom of expression
Commission v France (Spanish Strawberries) = RESTRICTION OF FREE MOVEMENT OF COURTS SAID PUBLIC DISORDER THREAT ON PUBLIC ING- coj said yes accpetable but o facts not accpetbale u did nothing u could ahve done mo - was proptiaonte restriciton ms could succesful argue public pol
Schmidberger
Public morality. Public security?
-Public morality - bit more lee way on
Henn and Darby - goods coming into uk labelled as mannequins - COJ PM IMPORTANT IS THIS PROPROTINATE BUT REGARDED AS NOT NECC - sex doolls cant say oturage public morelaity
Conegate - dvds very specialist videos u can buy sex shops- fairly extreme versions- said outrageous coj said respoected cos couldny get that sort of video
Omega - dont allow shooting type game- restab as fairly decent people- argumnt of trader was - u can do this stuff in ms -but u cant do this in germany
so if u want to ban foreign goods on basis of public morali make usre u not selling
-Public security - wider just stop goods it can be goods that can be used for ,many thinfs
Campus Oil
Richardt- dual use goods- civilian nad military purpsoe to them
Kadi (capital)
cases here bit odd improtant exception
MOST LIKELY WIN PUBLIC MORALITY/SECURITY OR POLCY- case law tells us
Public health ?
1) Default position of the Court is “suspicion” for two reasons:
Masks protectionist intent:
Commission v UK (turkeys); - turkeys can get this diseas called norflok disease- 1 point uk banned of frnech turkeys cause newcastles disease- why think they did cos pressure form tuekry farmers uk - used public health reason to amke prtectionism - COURT EXAMINED
Commission v Germany (beer purity)- germany known for pure beer - tried to ba import certain additive- threat to public health- wehn ct look closer - ct - those no real public health just tryna protect public beer
CT SUSPICIOUS - if any suggestion ms - usually say ban say cant do this - jsut couldf of had labels instead of ban for public health
2)Member States often go for “most restrictive” as opposed to “least restrictive” measures:
De Peijper - ‘signed and endorsed “seen and approved” by the person who [was] responsible for the manufacture’. Allow trader to adduce evidence personally
Commission v Germany (beer purity)/Debus (sulphur)/Cassis de Dijon
MS LOVE USING BUT OFTEN FAIL - NORMAL cos public health used to protect national securiteis
Learning objectives?
- Explain the purpose of the various derogations from and exceptions to the full free movement of goods
- Explain the difference between Treaty exceptions and “mandatory requirements”
- Apply the various exceptions to hypothetical problem questions on the free movement of goods
